Introduction to Civil Law Jurisdictions

Traditions, Origins, and TerminologyMarylin Johnson Raisch

Associate Director for Research & Collection DevelopmentGeorgetown Law Library

AALL FCIL-SIS Webinar on Civil Law and Legal SystemsJuly 21, 2020

Three Main Periods in the Development of the Civil Law Tradition

Ancient Roman law (Twelve Tables, 449 B.C. had phases through Corpus Iuris Civilis of Justinian, completed in 530s CE. Laws for Germanic tribes, such as lex Romana Visigothorum, 506 CE, emerged with custom after the fall of Rome circa 476 CE.

Medieval continental law (11th century, Bologna, pre-Christian sources revived and on through present day); debate about medieval law in continuity with Roman law, since local custom and Germanic tribal law co-existed with Roman law and its vestiges in parts of Europe, also with canon law of the R.C. church.

Modern (national, industrial age) systematic codification of law

Civil Law Terminology

• Examples:• Obligations= torts AND contracts• Succession= inheritance law (estates but not trusts unless specifically adopted

from common law)• Servitude= easement• Prescription= adverse possession or can indicate running out of statute of

limitations or other time period for filing a claim

Topic of law Civil Law: terms/sources Common Law: terms/sources

Injuries, intentional or negligent Delictual obligations/civil code and modern insurance statutes

Tort/case law

Contracts Contractual obligations/civil code Contracts/case law

Property Property/civil code (separate aspects re marital law in Persons; acquisition in Succession); servitude (similar to easement); community property (marital)

Property/case law; some statutes

Family law Persons (natural): matrimony, adoption/ civil code or modern issues in a family code or statute (e.g., same gender marriage)

Domestic relations and juvenile law/statutory & case law

Company law Persons (legal, juridical)/ civil and/or commercial codes, statutes

Company law or corporations/ statutory and regulatory

Commercial law* Historically, lex mercatoria*/ separate code Statute or statutory code (UCC sale of goods*)

Criminal law and procedure Separate codes, penal and procedural; investigative

Separate codes, penal and procedural ; adversarial (strongly Constitutional in U.S.)

Civil procedure Now in separate code; more judge-driven than adversary-driven so less discovery or rules of evidence; different role for precedent

Separate code; rules of discover and evidence, stare decisis in many jurisdictions

What Law Does a Civil Code Contain?

• Early Roman divisions: Of Persons, Of Things, of Actions (procedure)• Napoleonic division for French Civil Code , Code civile (and

most of its imitators): Book One, "Of Persons," (status of aliens in France, marriage, divorce, guardianship, etc.) Book Two, "Of Property, and the Different Modifications of Property," (ownership property, usufruct, servitudes, etc.) Book Three, "Of the Different Modes of Acquiring Property," (successions, gifts and wills, obligations, contracts, matrimonial property systems, liens, mortgages, etc.)

• German Federal Civil Code, Bürgerliches Gesetzbuch (BGB): Book One, General Part includes Persons and aspects of Contracts; Book Two, Law of Obligations, includes details on contracts and injuries; then books on Property Law (possession, ownership, mortgages) Family Law (marriage, legitimacy, guardianship), and Inheritance.

Venice, 1478. Credit: UC Berkeley, Robbins Collection. https://www.law.berkeley.edu/wp-content/uploads/2017/11/CommonLawCivilLawTraditions.pdf

Justinian, Corpus Iuris Civilis 529-534 CECodex- imperial edictsDigest, Pandects- excerpts of jurists’ writingsInstitutes- textbookNovellae- new laws or edicts(added after previous compilation)

See also Blume, Annotated Justinian Code online, ed. T. Kearley (and 3 vol. print edition).

Credit, Philadelphia, Free Library of Philadelphia, Rare Book Department, Lewis E 244, www.digital-scriptorium.org

Part II of the Digest of Justinian I, Bologna, 1250-

1299

Decretals of Gregory IX. A judge seated between a man and a woman, each with an advocate; in the margins, a rabbit and a bird. Text from France 13-14th c.

Credit: San Marino, Huntington Library, HM 19999, f.64

Canon law continues the Roman law tradition: Decretum Gratiani, 1140 CE & other decretalists http://web.colby.edu/canonlaw/tag/rufinus/

Heidelberger Sachsenspiegel landrecht 1301-1400

Credit: Universitätsbibliothek Heidelberg, Cod. Pal. germ. 164 s.029r

Las Siete Partidas 126518th c. edition

Credit: Guide to exhibition “Jewels from the French Collection,” SPRING/ FALL 2018, Jacob Burns Law Library, George Washington University Law School.

Code Civil des Français 1804

Known as the Code Napoléon after 1807.Three Books:

I. PersonsII. PropertyIII. Modes of Acquiring Property (succession, marriage)

Drafter: PortalisInfluences: Domat, Pothier

Credit: CH Beck Verlag, https://www.beck-shop.de/

BGB German Civil CodeInfluenced civil codes of• Japan (also received French civil

code influences)• Qing dynasty code of China 1911• South Korea• Greece• Switzerland & Turkey via the Swiss

in Obligations

From Legal families and even Taxonomy to Legal Traditions(Warning: TEXT HEAVY SLIDE)

• H. Patrick Glenn* and Rene David** began to see the notion of traditions as best capturing a networked world of transplants, influences, and post-colonial realities.

• Glenn defined tradition as something very neutral and not always European: simply information. Legal system rules, customs, and norms come to us from the past and may change. ”If tradition is information, then the tradition which attracts the most adherence will be the one whose information is the most persuasive.” (37)

• But what about legal systems that contribute to domination, human rights violations, and racism?

• Glenn replies that tradition can be judged and evaluated, like any other information or system by how it is used.(45) There can be a tradition of domination or of tolerance, corruption or the rule of law.

• David and Brierley used the term ”tradition” to expand comparative law through civil law terminology and models into new historical and cultural situations, such as socialist law as well as global religious and customary law.

• H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law. 5th ed. Oxford: Oxford and New York: Oxford University Press, 2014.• *René David and J.E.C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law. London: Stevens, 1985.

Simple Civil Code Research Question

• Where would one look in a civil code to find or to develop an approach to artificial intelligence and its possible status in a civil code, or check to see if the code would cover it?

Online Sources of Civil Code Texts

• Free internet• LSU Law: Civil Law Online, Civil Law in the World, https://www.law.lsu.edu/clo/civil-

law-in-the-world/ lists 57 jurisdictions• Translations: (google in fact turns up many, but watch the date!)

• France: Legifrance: https://www.legifrance.gouv.fr/Traductions/en-English/Legifrance-translations

• Germany: https://www.gesetze-im-internet.de/englisch_bgb/• Netherlands: www.dutchcivillaw.com

• Foreign Law Guide (print but also online sources) and GlobaLex• Roman Law Resources, www.iuscivile.com (Aberdeen)

• Subscription databases: publishers for each jurisdiction: Beck, Dalloz, etc.

Selective Preview of Bibliography

• Bussani, Mauro, ed. Cambridge Companion to Comparative Law. Cambridge, UK: Cambridge University Press, 2012.• David, R. [and others]. International encyclopedia of comparative law. [Issued under the auspices of the International Association of Legal

Science.] Tübingen, J. C. B. Mohr (Paul Siebeck); New York, Oceana, 1971- .• David, R. and • Glenn, H. Patrick. On common laws. Oxford: Oxford University Press, 2007.• Glenn, H. Patrick. Legal traditions of the world : sustainable diversity in law. 5th ed. Oxford; New York: Oxford University Press, 2014.• Kischel, Uwe. Comparative Law. Oxford: Oxford University Press, 2019.• Merryman, John Henry and Rogelio Pérez-Perdomo. The civil law tradition: an introduction to the legal systems of Europe and Latin

America. 3rd ed. Stanford, Calif: Stanford University Press, 2007.• Barry Nicholas, An Introduction to Roman Law .London: Oxford University Press, 1975 (ebook 2008 has revised bibliography and glossary).• Andersen, Per, et al., eds. Law before Gratian: Law in western Europe c.500-1100. Copenhagen: DJOR Publisheing, 2007.• Pihlajamaki, Heikki,and Markus D. Dubber, eds. Oxford handbook of European legal history. Oxford: Oxford University Press, 2018.• Reimann, Mathias, and Reinhard Zimmermann, eds. The Oxford handbook of comparative law. Oxford: Oxford University Press, 2006 .• Zweigert, K. and H. Kotz. An Introduction to comparative law. 3d ed. Trans. Tony Weir. Oxford: Oxford University Press, 1998.

• LINK TO BIBLIOGRAPHIES FOR THIS PRESENTATION: https://georgetown.box.com/s/hddywrw5zjcb8pat8vu9z4qe0xsc71l4